Evans v. State

• Decision Date: 02 February 1899
• Citation: 25 So. 175,120 Ala. 269
• Parties: EVANS v. STATE.
• Court: Alabama Supreme Court

25 So. 175

120 Ala. 269

EVANS v. STATE.

Supreme Court of Alabama

February 2, 1899

Appeal from city court of Gadsden; John H. Disque, Judge.

Lum Evans was tried under an indictment charging him with the murder of Parker Rowe by cutting him with a knife, was convicted of murder in the second degree, and appeals. Affirmed.

Amos E Goodhue, for appellant.

Charles G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

Evans the appellant, was defendant in the court below to an indictment for the murder of Parker Rowe. The evidence showed that Rowe was killed with a knife, the arteries and veins being severed on each side of the throat. There were two or three incisions on each side of the throat and neck. On the trial, the court, against defendant's objection, allowed a nonexpert witness, who examined the wounds, to testify that "they looked like they had been cut from the front of the throat back towards the ear." This witness went on to further testify that "the gashes were deeper in front part of the throat; cuts were almost together, but towards the ears they became shallower, and further apart; the severed skin in edge of gashes were grained towards the ear one gash left the throat, and cut the lower portion of the ear; [one] gash left the throat, and run up on jaw." It would seem that the admission of the evidence objected to was proper (Perry v. State, 87 Ala. 30, 6 So. 425; Watkins v. State, 89 Ala. 82, 8 So. 134), though the case of Nave v. Railroad Co., 96 Ala. 264, 11 So 391, casts some doubt upon it. But, whether so or not, under the influence of section 4333 of the Code, establishing the doctrine of error without injury in criminal cases, the principle that where a witness, though improperly allowed to state a conclusion of fact, states also the specific facts upon which that conclusion is based, so that the jury can draw their own conclusions therefrom, no presumption of injury arises from the admission of his conclusion, and a reversal cannot be based upon it. Underh. Ev. § 186; Langworthy v. Green Tp., 88 Mich. 207, 50 N.W. 130; Pennsylvania Co. v. Frund (Ind. App.) 30 N.E. 1116. This is analogous to the rule long established in this state that a nonexpert witness may give his opinion or conclusion as to sanity if he details the facts upon which it is predicated. Fountain v. Brown, 38 Ala. 72; Murphree v. Senn, 107 Ala. 424, 18 So. 264; Burney v. Torrey, 100 Ala. 157, 14 So. 685.

The court, in its general charge, instructed the jury as follows "Life cannot be taken to arrest any other than a felonious assault, or an attempt to commit a forcible felony;" and again: "If an assault is not felonious, however it may mitigate, it cannot justify, the taking of human life." In other parts of the general charge, the principle that the danger which will justify taking the life to save life need only be apparent. So that, construing the whole charge, as we must, together, the clauses copied above are not open to the objection that they authorize self-defense only to arrest actual danger of a felonious nature. Moreover, these charges, considered abstractly, do not impinge upon that principle. They deal only with cases of actual assault, and they mean only that, where there is an actual assault, it must be of the character stated, else life cannot be taken in resistance of it. And at most it would seem that the omission of reference in the charges to defendant's right to act upon apparent as well as upon actual danger could only serve to give them a misleading tendency, which should have been corrected by requests for explanatory charges, and which will not justify a...